Lopez Rodriguez v. S.H.H.S ( 1993 )

May 4, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2297
ANGEL LOPEZ RODRIGUEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Cyr, Circuit Judges.
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief
for appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
Garcia, Assistant United States Attorney, and Robert J. Triba,
Assistant Regional Counsel, Department Health and Human Services
on brief for appellee.
Per Curiam. Angel Lopez Rodriguez appeals the
judgment of the district court affirming a final decision of
the Secretary of Health and Human Services ("Secretary") that
appellant did not meet the disability requirements of the
Social Security Act.
Appellant's application, filed April 13, 1989,
alleged an inability to work beginning October 15, 1984.
Because of an earlier disposition of his previous
applications, the period of alleged disability under review
here begins October 1, 1987 and ends December 31, 1989, when
appellant's insured status expired.1 The current
application was denied, appealed, and denied again. After a
de novo hearing, the Administrative Law Judge ("ALJ") found
that appellant had a residual functional capacity for the
full range of light and sedentary work, and so was not under
a disability as defined in the Act. The Appeals Council
denied review. An appeal was taken to the district court,
where a magistrate-judge concluded that the Secretary's
decision was supported by substantial evidence. Objections
to the magistrate's report were rejected by the district
court judge in a lengthy opinion. The district court also
1. Appellant filed two previous applications alleging the
same onset date. The earlier applications were denied on
September 30, 1987. The denial was affirmed by the Appeals
Council, and no further appeal was taken. There appears to
be no colorable challenge here to the finality of that
decision. Califano v. Sanders, 430 U.S. 99 (1977); Dvareckas
v. Secretary of HHS, 804 F.2d 770 (1st Cir. 1986).
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adopted the magistrate's findings and report in full,
affirming the Secretary's decision. We, too, affirm.
Appellant claimed an inability to work due to a
nervous condition, and heart and back problems accompanied by
severe pain. Applying the sequential analysis required by
the regulations, the ALJ found that in combination
appellant's conditions were severe, but they did not meet or
equal any of the listed impairments. 20 C.F.R. 404.1520,
404.1520a. Appellant's conditions, nevertheless, were found
to prevent him from returning to his past relevant work as a
truck driver.
Appellant does not dispute the above findings. He
takes issue, however, with the ALJ's finding at step five,
that despite his conditions, he has the residual functional
capacity to engage in the full range of unskilled light and
sedentary jobs available in the economy. Appellant argues
that the ALJ mistakenly determined that appellant had no
objective medical impairment likely to cause the severe
degree of pain alleged, improperly weighed the testimonial
evidence of pain, and erred in relying on 20 C.F.R. Part 404,
Supt. P, App. 2, Tables 1, 2 (the "grid"), rather than a
vocational expert.
Our standard of review is whether the Secretary's
findings are supported by "substantial evidence." We will
affirm the Secretary, "if a reasonable mind, reviewing the
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evidence in the record as a whole, could accept it as
adequate to support his conclusion." Ortiz v. Secretary of
HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v.
Secretary of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).2
We have no difficulty finding substantial support
in the record for the ALJ's resolution of the purported
conflicts in the medical evidence. As to appellant's heart
condition, the record shows that appellant began complaining
of chest pain of an unknown origin in March, 1988. Diagnoses
included arthralgia, controlled hypertension and chest wall
syndrome. Although an initial electrocardiogram showed a
first degree atrioventricular block leading to a diagnosis of
angina, three later electrocardiograms and a stress test were
normal. The ALJ's conclusion that appellant's chest
condition was not ischemic in nature was thus logically
dictated by the medical findings and tests in the record.
There was a somewhat starker conflict in the
evidence relating to appellant's back condition. Appellant
was treated by a chiropractor between December, 1988 and May,
1989. The chiropractor reported that appellant showed a
limited range of motion and severe pain in the cervical and
lumbar areas, muscle spasm, poor motor function in his arms,
2. The ALJ's and magistrate's reports well summarize the
lengthy record, which includes a miscellany of physical
complaints and medical reports. We recap here only those
record parts necessary to our decision.
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a fair ability to walk on heels and toes and stiff gait, but
normal reflexes and no atrophy. The chiropractor diagnosed
an unstable lower back and possible discogenic disease, with
a poor prognosis.
By contrast, a consulting internist who examined
appellant in June, 1989 reported observing normal joints with
no swelling, tenderness nor decreased range of motion, a
normal gait, coordination and reflexes. X-rays of the
cervical spine were also normal, reflecting preserved disk
spaces. Lumbar region lateral flexion was normal, forward
flexion was reported to be a full 90 degrees, but with some
pain. The internist diagnosed back pain secondary to
paravertebral muscle spasm.
The ALJ fully credited the internist's report. He
declined to assign controlling weight to the treating
chiropractor's diagnoses because they were contradicted by
the other substantial objective medical evidence in the
record, including x-rays. He carefully explained his
conclusions as required by the regulations. 20 C.F.R.
404.1527(d)(2) (1991). We have no doubt that the ALJ's
resolution of these conflicts was reasonable, within his
competence, and amply supported by the record. Rodriguez,
647 F.2d at 222.
As to appellant's nervous condition, the ALJ
concluded that it placed no limitation on appellant's ability
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to work. This conclusion was also well supported by the
medical evidence. Appellant had been referred by his
attorneys to a mental health center in March, 1989, where he
was diagnosed as suffering from a mild anxiety disorder.
After small doses of Vistaril were prescribed, appellant
reportedly remained stable and improved. The diagnosis was
confirmed by later evaluations in which appellant was
repeatedly described as oriented, alert, coherent and
relevant, having adequate logic, judgment and memory.
Although it was noted that appellant had slight difficulty
maintaining social functioning, concentration, and
persistence of pace, two residual mental capacity assessments
concluded that he retains the abilities to perform routine
work tasks and to cope with the demands of a work
environment. These assessments are sufficient to show that
appellant's mental capacity to engage in unskilled or semi-
skilled sedentary work remains intact. See Ortiz, 955 F.2d
at 769-70.
In sum, the record amply supports the ALJ's
determination that the credible diagnoses failed to show any
objective medical impairment reasonably associated with the
severe degree of pain and functional limitations alleged.
Moreover, there were no reports of any other clinically
verifiable symptoms of severe pain.
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We also find no error in the ALJ's evaluation of
appellant's subjective complaints of pain. In accordance
with the guidelines set forth in Avery v. Secretary of HHS,
797 F.2d 19, 21 (1st Cir. 1986), the ALJ considered
appellant's testimony in light of the other record evidence.
Appellant described his current pain as radiating from under
the armpit and back; said that his vertebral column feels
crooked, and his arms feel dead. He also described strong,
sharp chest pain, accompanied by nausea and shortness of
breath, at times so severe that he claimed to lose
consciousness. And he testified to feelings of extreme
anxiety and palpitations, as well as difficulty sleeping.
As the ALJ noted, appellant's subjective
description was corroborated by neither medical nor lay
observations. In three visits to the District Office, and
during the residual mental capacity evaluations, appellant
showed no signs of any impairment consistent with severe
pain. The ALJ noted, as background, that shortly before the
current disability period, appellant himself had described
his daily activities as watching television, reading the
papers and the Bible, going to church almost daily,
occasionally visiting the sick, and driving about three times
a week. At the instant hearing, appellant testified, for the
most part, to more limited daily activities, but also
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mentioned some activities which seemingly would require a
high degree of exertion.3
We necessarily defer to the ALJ's evaluation of
appellant's credibility, especially where it is supported by
substantial evidence and specific findings. Frustaglia v.
Secretary of HHS, 829 F.2d 192, 195 (1st Cir. 1987). The ALJ
credited appellant's subjective complaints of pain only to
the extent consistent with the medical evidence, indicating
the existence of mild pain. Although the appellant's
combination of conditions precluded his returning to his past
relevant work as truck driver, the ALJ further found that
appellant retained the capacity to engage in the full range
of light and sedentary work.
Although we have not located in the record any
residual functional capacity assessments, other than those
associated with appellant's mental impairment, we think the
ALJ made a competent, commonsense judgment about appellant's
exertional functional capacity based on the medical findings.
See Gordils v. Secretary of HHS, 921 F.2d 327 (1st Cir. 1990)
(although ALJ is ordinarily not qualified to assess residual
functional capacity based on bare medical record, he may do
so as long as he does not overstep the boundaries of a lay
3. Although appellant stated that he spent much of his time
in bed or in a hammock due to weakness and pain, when asked
about his personal relationships he mentioned that not long
ago, when his "blood pressure went up," he took a hammer and
broke a door.
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person's competence); Perez v. Secretary of HHS, 958 F.2d
445, 446 (1st Cir. 1991) (a finding that claimant does not
suffer from any impairment posing significant exertional
restrictions would obviate the need for medical assessment of
exertional residual functional capacity).
In Gordils, we upheld a lay fact finder's
conclusion that a diagnosis of "weaker back" did not preclude
sedentary work. There we said we might be troubled by a lay
fact finder's opinion that a claimant was capable of the more
physically demanding efforts required by light work. In this
case, however, we need not pause to consider the ALJ's "light
work" conclusion, because his alternate finding that
appellant was "not disabled" from performing the full range
of sedentary work was, on the basis of the medical record
before us, well within the ALJ's competence.
Accordingly, we also reject appellant's challenge
to the use of the grid instead of reliance on a vocational
expert. Rodriguez-Pagan v. Secretary of HHS, 819 F.2d 1, 3
(1st Cir. 1987), cert. denied, 484 U.S. 1012 (1988). The ALJ
consulted the grid only after determining that appellant's
alleged non-exertional impairments did not significantly
affect his ability to engage in the full range of work in the
sedentary jobs category. Considering appellant's age (46
years old), education (7th grade level) and work experience
(semi-skilled, non-transferrable skills), the ALJ properly
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reached the alternate conclusion that the grid directs a
finding of "not disabled". 20 C.F.R. Part 404, Subpt. P,
App. 2, Table 1, Rule 201.19. There thus was no prejudice in
the ALJ's failure to ask the vocational expert about how
plaintiff's non-exertional impairments might affect his
ability to perform light or sedentary work.
For the reasons stated, the judgment of the
district court is affirmed.
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